The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters in a so-called retention election – in which there is no competing candidate but voters are asked simply whether they approve of the incumbent – of the states that provide for electoral contests between competing judicial candidates, some or all judicial elections are nonpartisan, even though candidates for other state offices are elected on party lines. Most strikingly, virtually all states that provide for judicial elections also impose campaign codes that restrict the election-related activities of judicial candidates to a far greater extent than these states regulate the campaigns of executive and legislative candidates. Generally adopted by rule of the state’s highest court rather than by statute, these codes, inter alia, limit what judicial candidates may say in their campaigns, restrict how they raise campaign contributions, and curtail their ability to engage in partisan political activities other than support for their own candidacies.
Constitutional Law | First Amendment | Judges | Law
Judicial Campaign Codes after Republican Party of Minnesota V. White,
U. Pa. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1343